The increasingly long arm of the law

Montana climate change lawsuit outcome largely in favour of young plaintiffs

In what has been called a landmark legal decision, a Montana court judge has ruled largely in favour of a group of young plaintiffs who alleged the state violated their right to a “clean and healthful environment” by promoting the use of fossil fuels. Among other things, the court has struck down a provision in the Montana Environmental Policy Act that barred the state from considering climate impacts when permitting energy projects. (!) The articles here and here provide a good summary. They also provide the link to the Findings of Fact, Conclusions of Law, and Order document, which makes for a fascinating read (in very plain English) of the background findings and arguments of the case. This article does a good job of summarizing the ‘findings of fact’ and ‘conclusions of law’ of the ruling, including that:

• Climate change harms children and specifically the youth plaintiffs
• Climate change is already adversely affecting Montana’s natural environment
• Climate change is already harming the plaintiffs
• The defendants’ actions contribute to climate change and harm the plaintiffs

Reading the ruling document serves as a reminder that the legal process is a comprehensive one, and also that laws and regulations are power drivers of behaviour – and change.

This case is noteworthy because it is apparently the first youth-led and first constitutional climate case to go to trial in the United States. According to many, it has also become one of the strongest decisions on climate change issued by a court to this day. While we can expect the defendants to appeal the decision, one can only wonder exactly what rights they are fighting to keep.

The CORE to investigate Ralph Lauren Canada for human rights violations

The Canadian Ombudsperson for Responsible Enterprise (CORE) is a human rights ombud that reviews complaints about possible human rights abuses by Canadian companies when those companies work outside Canada in the garment, mining, and oil and gas sectors. Its mandate is to encourage companies to follow the UN Guiding Principles on Business and Human Rights (UNGPBHR) and the OECD Guidelines for Multinational Enterprises on Responsible Business Conduct . Following an initial assessment of the allegation that Ralph Lauren Canada has supply relationships with Chinese companies that use or benefit from the use of Uyghur forced labour, CORE has decided to launch an investigation into the complaint against Ralph Lauren Canada.

This development is noteworthy in many ways.

First, the response of the US parent company has been that the CORE has no jurisdiction “as Ralph Lauren Canada is a subsidiary and is not responsible for decision-making”. (!) Especially dumbfounding given that the US enacted the The Uyghur Forced Labor Prevention Act in December 2021.

Second, Canada is expected to enact its own legislation, Bill S-211 Fighting Against Forced Labour and Child Labour in Supply Chains Act , which received Royal Assent on 11 May 2023 and is expected to come into force on 1 January 2024. This law will require companies, especially those that rely on labour in developing nations with weak rule of law, to conduct thorough due diligence of operations throughout their value chain. It will expand the prohibition on the importation of goods mined, manufactured, or produced, in whole or in part by forced labour, to also include child labour. And it will impose an annual, public reporting obligation on certain entities and government institutions on the steps they have taken to prevent and reduce the risk that forced labour or child labour is used by them or in their supply chains. A recent BMO Global Asset Management report on The State of Corporate Human Rights Due Diligence in Canada (highlighted in our 24 February edition) provides some great insights into where Canadian companies and sectors rank relative to one another and against global benchmarks on their human rights due diligence, in the context of the new legislation.

Third, jurisdictions around the world are implementing stricter regulations to oblige companies to take action to end actual and potential human rights violations, on the premise established by the UNGPBHR that all businesses, everywhere, have a responsibility to respect human rights and that human rights impacts are often underreported by organizations. Perhaps the most notable one is the European Union’s Corporate Sustainability Due Diligence Directive (CSDDD), which is expected to be adopted in 2024. This is also why in 2021 the Global Reporting Initiative (GRI) revised its standards to embed mandatory human rights-related disclosures for all reporting organizations, specifically those of the UNGPBHR, the International Labour Organization, and the OECD Guidelines for multinationals.

Fourth, it’s pretty cool that Canada has a CORE that is actually taking action to investigate complaints. Part of walking the talk.